Leeraram Arjandas Asudani vs Commissioner Of Customs (Acc & Import), ...

(Arising out of Order-in-Appeal No. CC/MAK/15/2011-12/ADJ/ACC(IMP) dated 04.08.2011 passed by the Commissioner of Customs (Import), Mumbai)

For approval and signature: Honble Mr. P.S. Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : of the Order?

4. Whether Order is to be circulated to the Departmental : authorities?

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Leeraram Arjandas Asudani K.J. Import Export : Appellant

VS

Commissioner of Customs (ACC & Import), Mumbai : Respondent

Appearance

Shri N.K. Tiwari, Consultant for Appellant

Shri S.J. Sahu, Assistant Commissioner (A.R) for respondent

CORAM: Mr. P.S. Pruthi, Member (Technical)

Date of hearing : 15/05/2015 Date of Pronouncement : /2015

ORDER NO.

The proceedings culminated in the impugned order in which the Commissioner confiscated the goods absolutely under Section 111(d) & 111(m) of the Customs Act, and imposed penalties of Rs. 2,00,000/- each on Shri Kamlesh J. Sony, Proprietor of M/s. K.J. Import Export and Shri Lilaram Arjandas Asudani under Section 112(a) of the Customs Act.

2. Heard both sides.

3. The Ld. Advocate appearing for the appellant stated that the entire case was made with mala fide intention. Because there is a proper procedure for importing goods through post parcel in Sub Foreign Post Office by a transit points. He further submitted that the letter dt. 9.7.2009 on which the department is placing reliance is not even part of the relied upon documents. On the other hand, he drew my attention to subsequent letters written by Shri Kamlesh Sony on 16th November 2009, 6th March 2010, 15th March 2010 and 5th April 2010. In the last three letters he specifically wrote that the goods should not be auctioned and he claimed ownership of the goods. These letters have been ignored by the adjudicating authority. Further, the signatures in the statements recorded on 9.7.2009 and 28.8.2009 do not tally and the style of writing is entirely different.

4. Again in the Article dt. 6.1.2010 to the show cause notice dt. 10.12.2009, Shri Kamlesh Sony stated that he is ready to pay the duty and penalty in respect of the seized goods.

5. Ld. Advocate contested the invocation of Section 111(d) and 111(m) for confiscating the goods stating that there is no violation of these Sections. The importer had a valid IEC Code. Only those goods which are intended for personal use are classifiable under chapter heading 98.04, but in the present case the goods were being imported for trading and would be classifiable under chapter heading 8523. The details of the goods were recorded on the post parcels. The import through post parcels is governed by Section 82. As per Section 2916) the declaration accompanying the goods is to be the declaration for the purpose of discharging Customs duty. It has been held by the adjudicating authority that there is no mis-declaration of quantity, therefore Section 111(m) does not get violated. Reliance was placed on the Tribunal judgment in the case of Sandhya Jewellers Vs. Commissioner of Customs, Ahmedabad 2013 (293) ELT 412 (Tri.Ahmd.) and Kuresh Laila Vs. Commissioner of Customs Chennai 2005 (189) ELT 45 (Tri. Chennai).

6. The Ld. AR appearing for the Revenue and reiterated the findings of the Commissioner.

7. I have carefully considered the submissions made by both sides.

8. The Ld. Counsel challenges the confiscation of the goods under Section 111(d) and 111(m) of the Customs Act, 1962. This is a serious contention and I proposed to ---- first Section 111(d) and 111(m) are reproduced below for convenience.

SECTION 111. Confiscation of improperly imported goods, etc.  The following goods brought from a place outside India shall be liable to confiscation: 

(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;

(m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54;

Section 111)d) makes those liable for confiscation which are imported contrary to any prohibition imposed under the Customs Act or under any other law. I find that the importer in this case had a valid IEC Code. The consignment had not even reached him at Ahmedabad before it was intercepted by Customs at Mumbai. The order of the Commissioner does not elaborate as to how the goods were prohibited. I find that Ld. Counsel is right in saying that Chapter heading 9804 covers only those goods which are intended for personal use. The present goods are commercial in quantity therefore they have to be classified under the appropriate heading which appears to be heading 8523 in the present case. In this view of the matter, I failed to see how the provisions of Foreign Trade (Development and Regulation) Act, 1992 are violated. The copy of the IEC Code which is issued on 3.6.2009 i.e. before the date of show cause notice which was issued on 10.12.2009. The IEC code is also authenticated by Superintendent Customs Ahmedabad. Therefore Revenue cannot challenge the authenticity of this certificate. Neither have they done so at the time of hearing. It is also not shown that goods in commercial quantity cannot be imported by post parcel. Therefore their appears to be no contravention of law and the import of goods the case alleged violation in Section 111(m) of the Customs Act, I find that the Commissioner in his order has clearly stated that the show cause notice has not brought out any discrepancy in the declared quantity of the goods. Neither from the records it is evident that there was any misdeclaration of value or in respect of any other entry made under the Customs Act. As the Ld. Advocate has pointed out in terms of Section 82 of the Customs Act, which applies to import by post, the label or declaration accompanying the goods shall be deemed to be an entry for import or export. In the present case no discrepancy has been pointed out in the labels accompanying the goods. In this view of the matter confiscation of the goods does not sustained and is set aside. Accordingly, penalties also get set aside.

9. Both sides have referred to various statements of the appellants. Revenue has recorded detail statements as to how in the past also the appellants were importing goods through post parcel. But these statements are of no avail when it comes to deciding the legality of the proposal to confiscate the goods. As held by me above, the confiscation does not sustain in the eyes of law. Therefore, I am not taking up other consideration pleaded by both sides.

(Pronounced in court on ..)

(P. S. Pruthi) Member (Technical)

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